Jones v R

Court of Criminal Appeal (NSW)|2015-05-27|Before: Hoeben CJ, Johnson J, Beech-Jones J

Judgment

HOEBEN CJ at CL: I agree with Johnson J.
JOHNSON J: The Applicant, Kevin Glen Jones, seeks leave to appeal against the sentence imposed on him by McLoughlin DCJ at Taree District Court on 28 February 2014.
The Applicant had pleaded guilty to one count of attempted aggravated break and enter with intent to commit a serious indictable offence contrary to ss.113(2) and 344A Crimes Act 1900. This offence is punishable by imprisonment for 14 years with no standard non-parole period.
The Applicant asked the sentencing Judge to take two further offences into account on a Form 1, both punishable by imprisonment for five years with no standard non-parole period: 1. being carried in a conveyance knowing that it had been taken without consent, contrary to s.154A(1)(b) Crimes Act 1900; and 2. intentionally damaging property, contrary to s.195(1)(a) Crimes Act 1900.
Taking into account the Form 1 offences, the Applicant was sentenced to imprisonment comprising a non-parole period of three years and four months commencing on 29 August 2013 and expiring on 28 December 2016, with a balance of term of one year and two months expiring on 28 February 2018.

The Applicant's Subjective Circumstances

The Applicant was born in November 1985. He was 24 years old at the time of the offence and 28 years old at the time of sentence.
The Applicant has an extensive criminal history, primarily involving property offences. That history spans across New South Wales, Tasmania, and Queensland.
A presentence report, tendered at the sentencing proceedings, revealed that the Applicant had started consuming alcohol at 11 years of age and that his use became problematic at about 17 years of age. By age 13, the Applicant appears to have developed a dependence on cannabis. The Applicant reported that he had managed to control his alcohol consumption at age 18 and to cease his drug dependency between the ages of 22 and 24. However, he identified that in ceasing his drug use he simply reverted to heavy daily alcohol consumption instead. The Applicant admitted that both in the lead up to and at the time of the offences, he had been prone to daily alcohol consumption to the point of intoxication. He stated that he had been drinking heavily at the time of the offending and that he had little recall of the events that took place.

Some Aspects of the Sentencing Hearing and Remarks on Sentence

Given the issues raised in this appeal, it is appropriate to set out some pertinent aspects of the sentencing hearing and his Honour's remarks on sentence.
The Applicant came before McLoughlin DCJ in the District Court for proceedings on sentence on 17 December 2013. A bundle of material, including a statement of facts, particulars of the Applicant's criminal history, a transcript of the remarks on sentence, transcript and other material in relation to the Applicant's co-offender, and a presentence report were tendered by the Crown at the hearing. The Applicant tendered two references; one from Phillip Butler, the Applicant's former employer, and the other from Mark Trusk, the Applicant's "Alcoholics Anonymous" sponsor.
The substance of the Applicant's submissions on sentence is revealed in the following exchange: "OLIVER [Defence Counsel]: Your Honour has the parity point. The co-accused got four and a half years. He was about the same age. They've got records that are about comparable. They both pleaded guilty. The irony for Mr Jones is that of the three things that occurred that night, that is backing the car into Liquorland, the substantive offence, he was the driver sure but the- HIS HONOUR: This is the car that was stolen in Queensland? OLIVER: Yes but not by either men I don't think, certainly not by Mr Jones. In any event he reversed the car into Liquorland so he, in a way, was more culpable on the attempt break and enter. Of course nothing was stolen. The vehicle didn't get up enough speed to get through the doors. But probably in my respectful submission the most culpable thing that happened that evening was the course of reckless driving committed by the co-offender and it was Mr Jones who sat in the passenger seat so he is only permitted himself to be driven in a conveyance whereas it was the other man Raufel [sic] who drove in that manner for six kilometres. That is probably the only distinction that can be made in relation to the offending is that on the Form 1 offence, this man was much less culpable than the other man. He just sat in the car while the other man drove it in that manner. He did escape. So that is three and a half years ago now. Your Honour will see when you look more closely at the records that he has come to attention in other states in those three and a half years. He served some time in Tasmania for a burglary. He served some time in Queensland for an assault and he came to the notice of NSW Police on this offence on 29 December last year he was driving around the area in a fashion that came to attention of police, was pulled up for the driving, warrant issued for his arrest for this matter, he's been in custody since 29 December last year. Eight of those months were for the driving offences so it's really only 28 August as the Crown points out that any sentence would count from. Mr Jones by virtue of his moving between the states is in the very unfortunate position where he's got the parity argument today, there's not much that can be said about that. There's not much that can be said about special circumstances because on the day he's released to parole from this offence, he'll be extradited to Queensland to serve the balance of his parole. It's a parole argument in Queensland. He won't have representation. There'll be no-one up there - no lawyer up there to argue a totality argument for him. He'll just go himself before the Parole board in Queensland and in effect be deprived of the opportunity for both this matter and the Queensland assault to run together in any fashion or almost- HIS HONOUR: That will be a matter for them. I have no jurisdiction. OLIVER: Absolutely but I just point it out to your Honour as one of the perils of crossing state lines and in fact the crossing the state lines on parole but that's the fact. He'll serve sentence likely comparable to the co-accused in New South Wales. Can I ask your Honour to make a finding of special circumstances- HIS HONOUR: What's the basis for special circumstances? OLIVER: He has a patent need for rehabilitation.- HIS HONOUR: Is he going to abide by that. OLIVER: This is the difficulty. He can't really do it in New South Wales on a parole period because he'll be extradited to Queensland the day his non parole period expires here so he really is caught between a rock and a hard place. Which is unfortunate because he's got a capacity for rehabilitation. I don't know whether I'd put it so hard as to say he's got good prospects but he's obviously got a capacity. In Tasmania where he committed a break in offence your Honour will see he selected a house that had $20,000 cash in it of all things. Went on a complete bender, got completely sick of alcohol and handed himself into police. Volunteered the break in and went and served 11 months to detox in Tasmania. So the pilot light's on there with respect to rehabilitation. It's now just a matter of finding the time between his various state sentences as they will be to do it. And he's got talent. He's done a glazing apprenticeship…"
After recounting the Applicant's extensive criminal history, the sentencing Judge found that the criminal history did not allow the court to extend leniency on sentence. His Honour observed: "The offender has committed many crimes in three States and served periods of incarceration for much of his life."
A discount of 25% was allowed for the utilitarian value of the Applicant's guilty plea.
His Honour was satisfied that the same sentence as that imposed on the Applicant's co-offender was warranted.
His Honour declined to make a finding of special circumstances.

Grounds of Appeal

The Applicant communicated two grounds of appeal: 1. Ground 1 - his Honour erred in failing to find special circumstances. 2. Ground 2 - the Applicant has a justifiable sense of grievance arising out of the disparity between the sentence he is serving and the sentence imposed upon his co-offender, Rousell.
The foundation for the Applicant's submissions in support of Ground 2 was an assertion that as the Applicant's co-offender, Rousell, was on conditional liberty at the time of the offending, a more severe sentence than that imposed on the Applicant was warranted. Counsel for the Applicant conceded that otherwise, the circumstances of the Applicant and his co-offender were "virtually identical" and that there "was no material difference in the roles played by each in the offences".
There was some controversy between the parties as to whether the Applicant was in fact also on conditional liberty at the time of the offending. That conditional liberty was said to arise out of a parole order in relation to a sentence that had been imposed and partially served in Queensland.
Mr Nash, counsel for the Applicant, filed in Court an affidavit of his instructing solicitor, Janet Kae Witmer, outlining the enquiries she had made to Corrective Services Queensland on 2 December 2014 as to whether the Applicant was on parole in Queensland on the date of the offending. Ms Witmer was informed that the Applicant was not on parole at that time.
The Crown foreshadowed at the hearing in this Court the existence of a document in the form of a report from the relevant parole authority in Queensland evidencing that the Applicant was on parole at the time of the offence. The Court granted the Crown an opportunity to provide that material after the hearing. Counsel for the Applicant conceded that Ground 2 would be withdrawn if the document revealed that the Applicant was on parole at the relevant time.
Thereafter, the Court was provided with an affidavit of Carolyn Griffiths, solicitor for the Crown, annexing a report dated 1 June 2015 from Queensland Corrective Services. That report revealed that the Applicant had been subject to a Parole Order, which on 21 April 2010, was cancelled taking effect from 30 March 2010.
As a result, at the time of the offending on 6 June 2010, the Applicant, having had his Parole Order cancelled, was not lawfully at liberty. This aspect provided no assistance to the Applicant on sentence: R v King [2003] NSWCCA 352 at [38].
In these circumstances, the Applicant did not press the second ground of appeal.

The Remaining Ground of Appeal - Suggested error in failing to find special circumstances Submissions for the Applicant

The Applicant advanced two arguments in support of the ground that the sentencing Judge erred in failing to find special circumstances.
Firstly, counsel for the Applicant submitted that by virtue of the sentence imposed on the Applicant commencing immediately after the sentences he was serving between 29 December 2012 and 28 August 2013 had expired, special circumstances ought to have been found so as to maintain the statutory ratio of 75% with respect to the Applicant's total continuous time in custody.
The Applicant submitted that the practical effect of his Honour's approach is that the overall non-parole period represents 77.4% of the overall period in custody, if the eight months served between 29 December 2012 and 28 August 2013 for unrelated offending is taken into account. The Applicant submitted that a reduction of the non-parole period by one month and 15 days ought be made to re-establish the statutory ratio.
Secondly, counsel for the Applicant submitted that the sentencing Judge erred in failing to consider the Applicant's custodial history, and the resultant risk of institutionalisation, which supported a finding of special circumstances. The Applicant submitted that by the time he is eligible for parole, he would have spent all but four months of the previous six-and-a-half years in custody. Submissions for the Crown
The Crown submitted that the matters relied upon by the Applicant in this Court were not addressed in submissions before the sentencing Judge. It was submitted that the only topic advanced as the basis for a finding of special circumstances was the asserted need for time to promote rehabilitation, a finding his Honour did not make.
The Crown submitted that in light of the Applicant's significant criminal history and past failures at rehabilitation, it was open to his Honour to decline to find special circumstances.
The Crown submitted that in all likelihood at the end of the non-parole period for the sentence he is presently serving, the Applicant will be extradited to Queensland. As a result, there is no prospect that the Applicant would be released to supervision to aid in rehabilitation whether the non-parole period was set at 77.4%, 75% or any other period.
In any event, the Crown submitted that the difference between the parole period of 14 months as it is presently set, and the parole period of 15½ months that is apparently sought, is de minimis and does not warrant the intervention of this Court.

Decision

Whether a finding of special circumstances is warranted in a given case falls within the discretion of the sentencing Judge. It is a question of fact in respect of which this Court will be slow to intervene: Jiang v R [2010] NSWCCA 277 at [83]; Caristo v R [2011] NSWCCA 7 at [27]; Allen v R [2015] NSWCCA 113 at [33].
If circumstances do exist that are capable of constituting special circumstances, the Court is not compelled to make such a finding and reduce the non-parole period: R v Fidow [2004] NSWCCA 172 at [22]; Allen v R at [34].
In the present case, the highest the Applicant's submission in the District Court went on the issue of special circumstances was a submission that a finding ought to be made because of a "patent need for rehabilitation". This Court has, on a number of occasions, rejected the notion that the fixing of a non-parole period is a matter that is to be determined solely or primarily by reason of considerations of rehabilitation: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]; Allen v R at [37].
A major impediment exists for an applicant to demonstrate on appeal that a primary Judge erred in failing to find special circumstances, if the circumstances said to give rise to that finding were not the subject of submissions at first instance. An appeal to this Court is not an opportunity for an applicant to revise and reformulate the case presented below, and this Court will not lightly entertain arguments that could have been put, but were not advanced on the plea: Zreika v The Queen [2012] NSWCCA 44; 223 A Crim R 460 at [81].
While there is no doubt that an offender's custodial history, and the risk of institutionalisation that may follow, is relevant to the discretion (Beale v R [2015] NSWCCA 120 at [68]; Jackson v R [2010] NSWCCA 162 at [24]; Dyer v R [2011] NSWCCA 185 at [50]; Jinnette v R [2012] NSWCCA 217 at [98]), the inherent difficulty facing the Applicant here is that this factor, now relied upon in this Court as a factor in support of a finding of special circumstances, was not articulated before the sentencing Judge.
In Dyer v R, the Court said at [48]- [50]: "48 …An applicant faces real difficulty in this Court in contending that a sentencing Judge has fallen into error by failing to take into account a material consideration, when that consideration was not advanced to the primary Judge as being a matter which should be taken into account. 49 A wide range of considerations are capable of constituting special circumstances for the purposes of s. 44(2): R v Simpson at 722 [88]. There is a practical expectation that an offender's legal representative will make submissions to the sentencing Judge by reference to the particular factors which are sought to be taken into account in the case at hand: Edwards v R [2009] NSWCCA 199 at [11]. 50 There is no question that the risk of institutionalisation may, in a particular case, warrant a finding of "special circumstances": Jackson v R [2010] NSWCCA 162 at [24]-[25]. Where such a submission is made, a sentencing Judge is not bound to make such a finding. It will be a factor to be taken into account with other factors, in the exercise of discretion, to determine whether a finding of "special circumstances" should be made."
Even if the submission advanced in this Court was made before the sentencing Judge, it does not follow that a finding of special circumstances would have been, or ought to have been made. The risk of institutionalisation of itself does not require a sentencing Judge to find special circumstances: Jinnette v R; Dyer v R. In Beale v R, Beech-Jones J (Hoeben CJ at CL and RA Hulme J agreeing) said at [68]-[69]: "68 …the mere identification of an offender as being institutionalised or at risk of institutionalisation does not compel a sentencing Court to find special circumstances and reduce the non-parole period. The overall purpose of the exercise is to facilitate the offender's rehabilitation. To that end 'there must exist significant positive signs that which show that if the offender is allowed a longer period on parole, rehabilitation is likely to be successful' (R v Tuuta [2014] NSWCCA 40 at [57]; see also R v Carter [2003] NSWCCA 243 at [20]). 69 It follows that, even if an offender is either institutionalised or at risk of institutionalisation, it is open to a sentencing judge to nevertheless decline to make a finding of special circumstances and vary the minimum ratio if they are not sufficiently satisfied that a longer period of parole is likely to result in their rehabilitation being successful, especially if the other factors relevant to sentencing do not warrant that course (see R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59] and [65])…"
Given the circumstances of this case, including the Applicant's extensive criminal history and his likely extradition to Queensland on expiry of the non-parole period, it would have been more than open to the sentencing Judge to refuse to find special circumstances, even if the Applicant's risk of institutionalisation was placed before his Honour as a factor to be taken into account.
The Applicant further relies, under this ground of appeal, upon the practical effect resulting from the present sentence operating cumulatively upon a pre-existing sentence for an unrelated offence.
The sentencing Judge was not asked to find special circumstances on this basis.
Even if the previous sentence is taken into account, the effective mandatory period of custody represents only 77.4% of the full period. This argument was not advanced at first instance. The Applicant is likely to be extradited to Queensland on the expiration of his non-parole period. No error has been demonstrated in the sentencing Judge's approach to special circumstances.
I propose the following orders: 1. leave to appeal be granted; and 2. the appeal be dismissed.
BEECH-JONES J: I agree with Johnson J.

Amendments 13 July 2015 - paragraph 31 (a) - changed to read to 'Ground 1 - his Honour...' DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 July 2015

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